Friday, June 19, 2015

CyFy Journal: The Shifting Digital Pivot Time for Smart Multilateralism*

Dear all,

The CyFy Journal, a
collection of essays by current experts in the field of internet
governance is out today. It has been published by ORF, in collaboration
with Global Policy Journal.I am very proud to have been
associated with the editorial team behind its publication and have also
the opportunity to publish a piece in it, co-authored with my colleague,
Samir Saran, Vice President, ORF.

As a decentralised and multistakeholder global internet governance system becomes
institutionalised, countries like India need to build strategies to successfully navigate the
ecosystem to achieve their national goals. Pursuing a policy of ‘smart multilateralism’—
which is a mixed bouquet of bilateral, multilateral and multistakeholder arrangements—
suits India’s goals to carve a niche role for itself and achieve Indian exceptionalism in
cyberspace.

It is difficult to capture the shifting power centres and discourse of
global internet
governance in a single sentence, paragraph or even paper. The number of
countries
actively engaging in this debate is increasing at a steady pace, as is
the number of
stakeholders. Countries like India, at the periphery of these
discussions although crucial
to their outcomes, are actively strategising on how to engage with a
decentralised and
largely multistakeholder global system that does not simply rely on the
state as the key
interlocutor for its citizens. Who should the state engage with, and
how? Which are the
focus areas where the state should take the lead, and in which layers of
internet governance
should it rely on ‘digital ambassadors’ from academia, civil society,
the private sector and activist groups to further its national goals?
How must it decide these national goals, at
a time when internet governance itself is being redefined? How must the
state go about
creating a pool of digital ambassadors to pursue these goals?

In this paper, we examine why and how sovereignty is slowly being redefined in the
global internet governance ecosystem, and suggest that adopting a strategy of ‘smart
multilateralism’ is the best way forward for India to carve out a niche role for itself and
secure Indian exceptionalism in cyberspace.

Competing Agendas: The New Normal

The network of networks is not only expanding with every new device connected
to the internet, but is today a resource as valuable in non-material terms as it is in
material terms. This growth of the global cyberspace, and by extension the cyber
economy, is adding $450 billion to the global GDP every year according to McKinsey
Global Institute’s report ‘Global Flows in a Digital Age.’1
It argues that the flow of goods,
services and finance reached $26 trillion in 2012, or 36 percent of global GDP, 1.5 times
the level in 1990. This is expected to increase to $85 trillion by 2025, three times the
value in 2012. Underneath these figures is the need for data and communication to
flow freely—‘connectedness.’ The lack of real world tariffs and barriers has allowed the
emerging economies to participate and profit from the world economy. India is currently
ranked at 30, jumping 16 spots from the previous year, in McKinsey Global Institute’s
Connectedness Index 2012.2

The clear benefits of this new ‘connectedness’ have allowed corporations to earn the trust
of large sections of civil society. The rise of social media has also given the consumer-citizen
a voice, which is exercised vigorously. A loss of confidence in public institutions across the
world has bolstered these trends. The Snowden revelations3
were a watershed moment
in internet history, eroding credibility in traditional powers like the US government and
opening the door for new players—other governments, businesses and civil society alike—
to assume a central role in managing the internet. NETmundial, the international internet
governance conference hosted by the Brazilian government soon after the Snowden
revelations, is one example. It demonstrated the collective weight of civil society, and both
national governments and corporations have had to pay heed to it.

Take, for example, the letter written by Cisco chief executive officer John Chambers to US
President Barack Obama,4
warning that America’s technological leadership will be impaired
if a fragmented internet is the result of the Snowden revelations about mass surveillance by
the US government. Similar misapprehensions surfaced across the world, particularly when
countries like Brazil, Germany and even India reacted strongly to the news, to the extent of
considering data localisation.5
Further, Germany has announced it is ending its long-running contract
with Verizon communications in 2015 over concerns that it is legally
required to
hand over certain information to the US National Security Agency (NSA).6

US technology companies have begun to feel the consequences, as people around the
world have begun to shun them for fear of their close relationship with the US NSA.
Various research has pinned losses of US technology corporations over the next few years
anywhere from $35 billion to $180 billion.7
Companies like IBM and Microsoft have plans
to build data centres across the globe to pre-empt any economic damage they may suffer
due to the political damage that has accrued post-Snowden.8
Big multinational companies
like Microsoft admit that there is now a ‘value shift’ across the global cyber market, one
that the incumbents need to familiarise themselves with.9
This is of particular significance,
since US soft diplomacy is often carried out through its corporations, which have become
assets to them in places where the American government is unpopular.

On its part, the US government seeks to back a decentralised, multistakeholder internet
governance ecosystem at the global level. Currently, the transition proposed by the Internet
Corporation for Assigned Names and Numbers (ICANN) away from US government
oversight to a new, non-governmental, multistakeholder body is underway. By encouraging
this transition, the US government hopes to regain some of its lost credibility and also
establish the current ecosystem as the dominant and stable alternative to a traditional UN based
system or a US-controlled one. And while this new system certainly accommodates
the growing legitimacy of many different groups and their competing interest, it does
leave sovereign countries in a dilemma. How can they best leverage the current system to
achieve their goals?

Sovereignty Redefined

Following the International Telecommunications Union’s plenipotentiary10 meeting in
Busan, South Korea, in 2014, the official who led the United States’ delegation wrote a
blog called ‘The Busan Consensus.’11 The title of this blog reveals as much as its content
does. Today, the US’s preferred option for global internet governance decision-making is
consensus-driven, where no single party has a veto over the process. This a direct reference
to shedding the decision-making structures the UN offers, which have traditionally been
a one-country-one-vote system. It may be instructive to add here that the NETmundial
Outcome Statement was drafted by the multistakeholder community through a consensusbased
process, and is the reason why it has global acceptability across a majority of
stakeholders. For its part, ‘The Busan Consensus’ also notes with satisfaction that the
International Telecommunication Union (ITU), a body under the auspices of the United
Nations, is not going to become a platform to discuss internet public policy issues.

The victory is not a small one. This goal had been outlined
quite clearly almost two years
before the Busan meeting took place, and US diplomats and envoys
travelled the world building consensus on the issue. The ITU resolutions
are binding on countries in a way
NETmundial is not. It was this gigantic effort made by the US that
helped defeat India’s
own draft resolution at the ITU plenipotentiary. India had made two
suggestions: The first
was that the ITU, a UN-led multilateral body, could absorb some key
roles related to the
critical functions of the internet because, according to the Indian
proposal, the internet
cannot be separated from telecommunications. The second suggestion built
on the premise
that regulating telecommunications is the sovereign right of states, and
therefore, some
features of internet governance would naturally fit into an expanded
mandate of the ITU.

This final outcome might seem to be paradoxical at first glance. A move to keep global internet
public policy discussions away from a platform where only sovereign countries have a vote is
at the same time being claimed as a victory by a sovereign country in its quest to settle global
internet governance mechanisms. The fact is that ‘The Busan Consensus’ certainly reads as
an affirmation of US dominance, but it is in service of perpetuating the ‘multistakeholder’
consensus-based internet governance model that is currently the global system employed
to discuss internet public policy issues. If this sounds confusing, it is because it certainly is.
The current internet governance ecosystem can best be described as decentralised, with a
number of platforms which range from multilateral to multistakeholder, that are each suited
to discuss only particular aspects of internet governance.

What the US and some other countries have understood clearly is that governance of the
internet—an entity which means different things to different stakeholders—cannot be
regulated in a centralised manner. The old legacy institutions of the UN no longer carry
the same weight they used to, and today are often sidelined by agreements in smaller
multilateral groupings or bilateral agreements, and multistakeholder meetings.

This is how internet governance works: Those looking to regulate the internet’s technical
working flock to ICANN, where engineers, diplomats, business leaders and civil society
sit together, while at other forums like the Group of Governmental Experts constituted
under the UN to discuss norms of state behaviour in cyberspace, only top government
officials take a place at the table. Other meetings, like the Internet Governance Forum, are
highly anticipated by civil society, governments and business, but produce non-binding
outcomes which only carry moral weight in the internet governance world.

It would be a mistake to assume that the value of sovereignty has diminished in this new
dynamic ecosystem. If anything, it has expanded to include participants in the pursuit
of sovereign goals by including new stakeholders who are crucial for the growth and
security of the internet ecosystem. Businesses, which predominantly own the physical
infrastructure the internet is built on, and who run companies which are driving the
growth of internet traffic, need to be accommodated in this discussion along with end
users, civil society and the technical community, without whom innovative growth is not
possible. Therefore, regulating porous digital borders from attacks, protecting the data
and privacy of citizens, negotiating and helping to develop technical standards on which
the internet is run, and inculcating a system of trust in this network of networks cannot be
conducted on a single platform.

The nation-state must be smart and understand that consensus building with multiple
stakeholders, including like-minded countries, has become the backbone on which this
system is being built. Countries with big diplomatic corps and mature internet industries
and civil society movements have been early adopters of the system. They are using the
system to keep decision-making open and malleable, especially when it concerns core
functions. Other, smaller countries have adopted issues of immediate importance to
them—for example, building consensus on the norms of cyberspace—in order to build
a safer cyberspace where they do not come under attack from larger powers. Emerging
economies have much to gain by consensus building and some are certainly dipping their
toes in the system.

For India, the assertion of sovereignty must straddle both worlds: One where governments
are looking for a place in the critical resource management of the internet, and the other
where other stakeholders are equally invested in the success of this enterprise and need to
be accommodated in this high-stakes debate. India too must, as it is doing slowly, embrace
this new digital complex. A country which has 300 million internet users (with the ‘next
billion’ yet to be connected to the internet), large scale e-governance projects underway,
an innovative and growing e-commerce market already generating sales of $16 billion in
2014, and is especially vulnerable to cyber threats given its scale and low-cost-low-security
devices, has a unique set of issues it needs to address. The scale of India’s net population,
the variety of services it seeks to supply and its social imperatives make India’s position
special. Indian exceptionalism needs to be fulfilled in the internet era. What the country
imperatively needs next is a strategy for the road ahead.

Smart Multilateralism

It is an unlikely scenario that India will carry the weight
of a billion people in a single vote
on a common platform like the UN. Such a situation is not desirable
either. India cannot and
should not have the same weight in internet discussions as countries
with small internet populations and even smaller economies. It should
take the lead in carving out rules of
the road that are beneficial to the healthy growth of India’s
cyberspace. The underlying
question being asked here is: What is the best suitable platform for
negotiations in order
to achieve a positive result? Traditional multilateralism has to be
tweaked to become
‘smart multilateralism’: The state must take the lead in core strategic
areas of concern
at platforms best suited to these discussions, while relying on other
stakeholders to take
the lead in other contemporary forums and institutions where the state
has less sway and
acceptability.

Smart multilateralism can be divided into four broad pillars. The first would be for India
to institutionalise its exceptionalism through bilateral agreements with like-minded and
relevant partners. Already there is momentum in India’s relationships with key countries,
which can be strengthened further. In fact, bilateral agreements between countries can lead
to changes in international arrangements and laws at the highest level. Take for example
how the India-US nuclear deal, borne of a bilateral arrangement, is compelling the UN to
change its rigid architecture. India was one of 23 founding members of the multilateral
General Agreement on Tariffs and Trade arrangement, raising developing country concerns
at the grouping which later grew to become the World Trade Organization, a body that
today boasts of 123 signatory countries. India has far greater weight and participation
at the G20 and even greater significance at the BRICS. This is because the former was a
focused group created to respond to a specific economic task at hand, while the latter was
made in response to an infirmity in the global governance system. Contrast this to India’s
single vote—and not even a veto—at the UN. India could create a rule-making body—a new
‘Digital 20’—which could have members who are equally invested in the system. The key
to success would lie in choosing the right partners, whose influence would be proportional
to their ‘buy-in’ and stakes. This right mix of partners with real-world influence could
come together to agree on digital norms and rules for the 21st century.

The second would be to engage with opportunities for rule making and norm
shaping outside the UN. The state-led London process is one such avenue. The ICANN
transition process is another. There are plenty of smaller gatherings, such as technical
meetings, regional forums and high-level meetings organised by academic institutions
and think-tanks, which help steer public policy thought in specific directions. These
must be leveraged after careful selection. At the same time, one must add that there is
still space for norm making within the UN system, most notably through the Group of
Governmental Experts, which looks at shaping norms of state behaviour in cyberspace,
and through interventions at the World Summit on the Information Society review
meetings.

The third broad pillar to pursue is the creation of a platform
that would manage and
shape the discourse on managing the digital world. This is admittedly
easier said than
done, as the internet governance ecosystem is dotted with overlapping
conferences in all parts of the world. However, not all attempts to
create a platform have been successful.
The recent example of a lukewarm response to the NETmundial Initiative
spearheaded
by ICANN, Brazil and the World Economic Forum comes to mind. Volunteers
at ICANN
too have complained of process fatigue. However, meetings which can take
a fresh
and honest look at problems from new perspectives are needed if the
decentralised
ecosystem is to work, and this gives emerging economies an advantage.
Given that the
next four billion to come online are going to be from their
countries—reflecting a digital
pivot to Asia—conversations crucial to the growth, freedom and security
of these regions
have automatically become pressing. Often, gatherings in the developing
world do not
reflect these concerns accurately, paying lip service to concepts like
the ‘digital divide’
and ‘capacity building’ as they discuss issues important to emerging
economies, such
as intellectual property rights and a possible cyber arms race. This is
where a country
like India, representing all spectrums of the digital society—the
uber-connected, the
recently-connected and the completely unconnected—can present a
legitimate platform
to hold discussions on pertinent digital debates. Weight must be given
to the platform
by having the Prime Minister chair it, with the Minister for
Communications and
Information Technology co-convening, and it must give equal weight to
the views of
non-governmental stakeholders as it does to the government.

Finally, the fourth pillar must entail creating a robust multisectoral debate on the digital
economy. India has already shown very positive first steps with the overwhelming
response to the question of network neutrality. This engagement must be encouraged
so that the resulting digital society is shaped by the concerns, suggestions and goals of
the domestic stakeholders, to be then exported to global forums. One only need to look
at the intermediary liability protections offered in the US’s domestic Digital Millennium
Copyright Act of 1998 to understand how civil liberties groups, corporations and academics
have successfully managed to fight for similar protections the world over. Not only have
the European Union and other countries accepted this, Indian civil society groups too
have taken up the cause of intermediary liability, drawing inspiration from what they see
as successful examples like the US digital copyright act. A robust domestic debate will
encourage an acknowledgement of India’s own larger goals in the global sphere, and allow
it to rely on its digital ambassadors to pursue a positive agenda at platforms where the
state has little influence or space.

Conclusion

Ultimately, there is no escaping the reality of our times. The decentralised, multistakeholder
model of internet governance has broad global acceptance, even as its exact form is being
worked out. The experiment at ICANN, i.e., handing over oversight of critical functions
to a multistakeholder body, is an example of how this global governance system is being
operationalised. Many countries around the world have openly declared their support for
the multistakeholder system, including the US, the UK, the Netherlands and Brazil. Others
are still learning to straddle the new system.

This is where the second reality comes into play. States will increasingly manipulate digital
spaces to their advantage, and this control and manipulations will be managed through
third parties, including corporations, civil society, scientists and academia. The strength of
this will lie in domestic multistakeholder processes that will allow these different actors
to work towards a common long-term vision of the internet, even as short-term goals may
differ. The states which will succeed in meeting their broader internet policy goals in this
age of ‘smart multilateralism’ will be the ones who are able to create strong partnerships
with non-state stakeholders.

At the start of 2015, India’s Minister for Communications and Information Technology
was famously quoted as saying that “India will decide on its internet governance model
which will be consistent with the role private players play in the spread of internet and
the pre-eminent role played by government in public welfare… to come up with a broad
framework, we will need to consult various stakeholders.”12 This must also be the blueprint
for India’s approach towards international internet governance. The objective, therefore,
for India to pursue must be “how to retain agency with the government while leveraging
the creative capacities outside.”13